18 USC 2257 – AdultBizLaw.com

Broken contract One of the most misunderstood aspects of “porn law” is whether certain laws, regulations and industry practices and customs apply to small amateur productions and/or couples versus the large mainstream porn production studios such as Brazzers, BangBros and LegalPorno.

The simple answer is most – if not all – of the same laws and regulations that apply to large mainstream studios also apply to the mom & pop (or husband & wife) or solo, POV producers – even those who only do content trades.

On numerous occasions I have heard from a potential client “oh that law is only for Brazzers that doesn’t affect my amateur productions.” That is simply not true. There is no distinction in any of the “porn laws” between large commercial mainstream studio productions and small amateur productions. Pornography is pornography and as long as you are creating hardcore content (anything involving penetration, even solo) then you are a pornographer, Hustler or Penthouse.

The most basic of the requirements of producing pornography is that a producer obtain model releases from everyone that appears in anyway in your video, whether you are paying that performer or simply trading services and/or content with them. If you do not have a model release you might lose your rights to sell that scene, clip or video.

The second regulation that all producers must comply with is 18 U.S.C. 2257 – the federal record keeping law. If you do not comply with this law for EVERY scene that you produce, you can face up to 5 years in jail. If you do require a copy of the personal identification of each and every performer that appears in your production, you are in violation of 2257.

If you hire models and/or performers and pay them to appear in your production, you must also comply with basic employment laws. That also applies to if you share revenue with your models/performers. In most states, workers compensation laws apply to employment situations. Which means that a production must have workers compensation insurance policy in effect when hiring models and performers. This usually applies even if you and model/performer believe and state in writing that the model/performer is an independent contractor. If a model/performer is injured on set, whether it’s a slip and fall or a sexual transmitted disease, the producer will be responsible for the injury.

Along with model/performers being employees for purposes of workers compensation, it should also be noted that they might also be employees for tax purposes and failure to pay the necessary payroll taxes on each model/performer can result in fines and penalties being levied against you or your production company. This situation has occurred with several of my clients over the years and in California the Franchise Tax Board has levied tens of thousands of dollars in fines and penalties on each one. For the models/performers, themselves, it should be noted that failure to pay taxes can result in the IRS levying fines and penalties as well. Over the years, numerous pornstars have been hit with audit letters from the IRS and later fines and penalties for failure to pay their taxes.

Another legal misperception is that if you pay for the content, you own it. That is not necessarily true as well. If your production company uses anyone to hold the camera, video camera, phone or tablet that records the scene, you must have them sign an assignment of rights giving you the rights to the scene, video or clip. Otherwise, they own the copyright to the material. This is true even if they are your partner or are legally married to them.

There is also the issue of the condom laws in California and other states. Most producers do not understand that according the CalOSHA, barrier protection is required for all productions in the state. Over the years several large and small production companies have been fined tens of thousands of dollars for failure to use barrier protection (condoms and dental dams) in their productions to prevent the transmission of bloodborne pathogens and sexually transmitted diseases.

Whether barrier protection is needed in other states is still an unanswered question. Though almost every state has some type of law or employment regulation that indicates that an employee cannot be exposed, even accidentally, to diseases while at work.

I could author another 10 to 20 pages on everything you need to know as a producer, even if you are only producing content for distribution on sites such as OnlyFans, ManyVids, Clips4Sale, SnapChat or your own ModelCentro website. As long as you produce content, you are a pornographer and the same laws apply to you as they do to Hustler, Penthouse, BangBros, LegalPorn or Brazzers ect.,

Failure to comply can mean serious jail time, fines and/or liability to you personally.

Whether you are thinking about becoming a content producer or already are, I highly recommend my 4-hour seminar wherein I cover the following topics;

DMCA and Copyright Law

Trademark Law & Federal Registration

Right to Publicity and Privacy

The Legal Difference Between Porn and Prostitution

Workers Compensation Law

Liability & Production Insurance

18 USC 2257 and 28 CFR 75.1

Registering Domain Names & Cybersquatting

Model Release Agreements & other Production Agreements

Independent Contract vs. Employee Issues

Filming Permits & Condom Permits

Recruiting, Hiring and Working with Performers

Employment Law Issues

Payroll Tax Issues

Health, Safety, STD Testing an OSHA Issues

Acquiring Credit Card Processing

Dealing with User Uploaded Content & the CDA section 230

Setting up an Affiliate Program

Producing Content in “Grey” States

The seminar is offered to individuals or companies. However, if you would like to put together a small group of producer/performers, I can offer the same seminar at a group rate.

Federal Record Keeping Requirements and 18 U.S.C. Section 2257

How it began…

In the fall of 1984, Penthouse magazine featured Traci Lords in a pictorial and made her their Pet of the Month. She quickly became an overnight sensation in the adult entertainment business and rapidly went on to star in hundreds of adult movies and posed for numerous other magazines.

By the fall of 1987, it became apparent that Ms. Lords might have actually been under the legal age of 18 when most of her print and video work was performed, thus making her a child and a minor when she appeared in those videos and magazines. This sent shockwaves through the adult entertainment business and resulted in numerous distributors being indicted by the federal government for the sale of child pornography. Many in the business scrambled to recall, retrieve and destroy Ms. Lordís pictures and videos to avoid prosecution and conviction.

Congress also immediately reacted to this and passed 18 U.S.C. section 2257 which was designed to prevent other minor age persons from appearing in sexually-explicit content. Section 2257, as it is referred to, places several requirements on those that act in and produce sex-explicit content. It is, without question, an all important piece of legislation that everyone in the adult entertainment business should be familiar with.

What 2257 requires?

Any producer, whether primary or secondary, involved in the creation or commercial distribution of images that contain visual depictions of actual sexually explicit conductî must maintain certain records of those that perform in that visual depiction.

What is actual sexually explicit conduct?

(A) Sexual intercourse of any kind, including oral and even between same sex partners;

(B) Bestiality;

(D) Sadistic and/or masochistic behavior;

(E) Sexually explicit content meant to arouse.

Who is a producer?

(A) Anyone that produces, manufactures, publishes any book, magazine, periodical, film, video, or other similar matter and yes, websites are included in this list.

When did it take effect?

(A) It is in effect and has been for any new content made after July 3, 1995.

What do I have to do as a producer?

If you are a producer of content you must create and maintain the following records;

(A) The legal name of each performer obtained by the examination of an identification document;

(B) The date of birth of each performer obtained by the examination of an identification document;

(C) Any name, other than the performer’s legal name ever used by the performer, including the performer’s maiden name, alias, nickname, stage name or professional name;

(D) For any content produced after May 26, 1992, such names shall be indexed by the title or identifying number of the book, magazine, film, videotape or other matter and again websites are included in this;

(E) Keep copies of all the identification documents that have been examined separated from all other records.

What constitutes identification?

(A) A state or federally issued ID that bears the photograph, name and birthday of the performer.

What do I have to do as a performer?

(A) Have 2 forms of identification issued by a state or federal government showing your legal name, birth date and photograph;

(B) Have a list of all your stage names, professional names, nicknames or alias that you have used in the adult entertainment business over your entire career;

While it is not required I would also provide any producer/director the following as well;

Where and for how long do I have to keep the records?

(A) At the producer’s place of business;

(B) The place of business must be a street address not a PO Box;

(D) If the producer ceases to remain in business, he or she shall still continue to maintain these records for a period of 5 years.

Labeling requirements under 2257…

(A) A statement must be affixed to every copy of the book, magazine, periodical, film/video, website or other matter that shows the title or identifying number of that publication and;

(B) The date of the production, manufacture, publication, reproduction or reissuance of the matter and;

(D) The person responsible for maintaining the records;

(E) The name of the corporation/legal entity as well.

What can happen if I violate 2257?

(A) Violation of 2257 is a felony and those found guilty of such shall be imprisoned for not more than 5 years and/or pay a fine;

(B) A second offense is punishable by imprisonment of not more than 10 years, but not less than 2 years and/or a fine;

Obviously, 2257 is a powerful statute and one that cannot be ignored. Failure to maintain these types of safeguards could also lead to the possible performance of a minor in an adult production which could have even greater potential for harm. The law is in a constant state of change in regards to 2257 and it is recommended that in order to fully understand those changes you consult and attorney immediately.

There are also many issues involved with 2257 that these pages have not touched on and remain somewhat unclear even to legal experts in the adult entertainment field. This summary is not meant to be exhaustive of what a producer’s responsibilities are when it comes to complying with 18 U.S.C. 2257. 18 U.S.C. 2257 is an extremely complex law and I strongly suggest that you contact competent legal counsel for additional information and advice.

Tag: 18 USC 2257

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